2019 (3) TMI 98 - AT - Central Excise

Condonation of delay in filing appeal - relevant dates of communication of order - whether the 3 days beyond 90 days are liable to be excluded to hold the appeal to be filed on the 90th day of the receipt of the order? - Held that - Section 4 of the Limitation Act is relevant in this respect which speaks about the expiry of prescribed period when the Court is closed. As per this Section, the day when the Court is closed has to be excluded and the appeal is allowed to be instituted on the day when the Court re-opens. The section goes on to explain that if during any part of the normal working hours the Court remains closed on a particular day same has also to be excluded. There is no dispute on the fact that last days of filing the impugned appeal i.e. 23rd & 24th June, 2018 were the days when the office of adjudicating authority below was closed on account of the days being Saturday and Sunday. Those two days, in view of Section 4 of the Limitation Act has to be excluded. Further, Section 12 of Limitation Act clarifies that the day of receiving the order has to be excluded while computing the period of limitation. Thus, the third day also remains excluded - Resultantly, it is clear that the appeal in hand stands filed on 90th day from the date of receipt of the order. Commissioner (Appeals) has committed an error while holding the appeal which was otherwise filed on the day of expiry of the limitation to still be barred by time - matter is remanded back to the adjudicating authority for the adjudication on the merits thereof.

Summary

Issues: Appeal dismissed on the ground of limitation.

The judgment pertains to an appeal against the Order-in-Appeal, where the Commissioner dismissed the appeal solely based on limitation grounds. The appellant argued that the appeal, filed three days beyond the 90-day limit, should not be considered time-barred as the date of receiving the order and the closing dates for the appropriate forum were not taken into account. On the contrary, the Department justified the dismissal by emphasizing the date of the order and the appeal being filed beyond 90 days. After hearing both parties and examining the record, it was established that the order under challenge was announced on January 30, 2018, received on March 25, 2018, and the appeal was filed on June 25, 2018, exceeding the 90-day limit by three days.

The crucial issue to be determined was whether the three days beyond the 90-day limit should be excluded to consider the appeal filed within the prescribed period. Section 4 of the Limitation Act was deemed relevant, which states that when the Court is closed, that day should be excluded, and the appeal can be instituted on the day the Court reopens. It further explains that if the Court remains closed during normal working hours on a particular day, that day should also be excluded. In this case, the last days for filing the appeal, June 23 and 24, 2018, were closed due to being Saturday and Sunday. Therefore, these two days were to be excluded as per Section 4 of the Limitation Act.

Moreover, Section 12 of the Limitation Act specifies that the day of receiving the order should be excluded when calculating the limitation period. Hence, the third day was also excluded. Consequently, it was determined that the appeal was filed on the 90th day from the date of order receipt. The judgment highlighted that the Commissioner erred in deeming the appeal time-barred, citing the decision in S.K. Enterprises and the case of Sapna Packaging Industries vs. CCE, Chennai, where exclusion of holidays for filing appeals was recognized. The order under challenge was set aside, remanding the matter back to the adjudicating authority for further consideration on the merits.